Nafr High Court
Case Details
1 Digitally signed by RAGHVENDRA JAT 2025:CGHC:21842 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPC No. 2420 of 2025 1 - Ashish Sahbani S/o Shri Bhikhchand Sahbani Aged About 40 Years Profession - Business R/o Sindhiya Nagar, Near Shiv Kali Mandir, Katulbod Road, District - Durg (C.G.). 2 - Smt. Varsha Sahbani W/o Shri Ashish Sahbani Aged About 38 Years R/o Sindhiya Nagar, Near Shiv Kali Mandir, Katulbod Road, District - Durg (C.G.). 3 - Smt. Jaya Sahbani W/o Shri Prakash Sahbani Aged About 44 Years R/o Flat No. 201, A Block, Solus Heigh, Alimdih, Raipur (C.G.). 4 - Prakash Sahbani S/o Shri Bhikhchand Sahbani Aged About 44 Years Profession - Business, R/o Flat No. 201, A Block, Solus Height, Alimdih, Raipur (C.G.). ... Petitioner(s) versus 1 - Union Bank Of India Through Its Authorized Officer Branch - Station Road Durg (C.G.). 2 - The District Magistrate Distt. Durg (C.G.) 2 For Petitioner(s)
Legal Reasoning
Pradesh & Chhattisgarh, that the application is prima facie barred by limitation as such it cannot be entertained. Being aggrieved by the aforesaid order this petition has been filed. 5. Learned counsel for respondent No. 1 has raised preliminary objection that this petition itself is not maintainable. Against the order passed by the Debt Recovery Tribunal the petitioners are required to prefer a statutory appeal before the concerned Debt Recovery Appellate Tribunal and the petitioners without approaching the concerned Appellate Authority have approached before this Court which is prima facie not in accordance with law having efficacious alternate remedy available under the law. The petitioners should have approached before the Debt Recovery Appellate Tribunal for redressal of their grievances. In support of his submission he has relied upon the judgment 5 passed in the case of South Indian Bank Ltd. and others v. Naween Mathew Philip and another [Civil Appeal Nos. of 2023 (Arising out of SLP (Civil) Nos. 22021-2022022 of 2022] & decided on April 17, 2023 reported in (2023) 17 SCC 311, Hon'ble Apex Court while relying on its earlier judgments passed in (i) Phoenix ARC (P) Ltd. v. Vishwa Bharati Vidya Mandir [Phoenix ARC (P) Ltd. v. Vishwa Bharati Vidya Mandir, (2022) 5 SCC 345; (ii) Federal Bank Ltd. v. Sagar Thomas Federal Bank Ltd. v. Sagar Thomas, (2003) 10 SCC 733); (ii) SBI v. Arvindra Electronics (P) Ltd., (2023) 1 SCC 540; (iv) United Bank of India v. Satyawati Tondon, (2010) 8 SCC 110; (v) State Bank of Travancore v. Mathew K.C., (2018) 3 SCC 85 and Varimadugu Obi Reddy v. B. Sreenivasulu, (2023) 2 SCC 168 has held that a writ petition involving proceedings under SARFAESI ACT over a financial transaction is not maintainable and has observed as under: "18. While doing so, we are conscious of the fact that the powers conferred under Article 226 of the Constitution of India are rather wide but are required to be exercised only in extraordinary circumstances in matters pertaining to proceedings and adjudicatory scheme qua a statute, more so in commercial matters involving a lender and a borrower, when the legislature 6 has provided for a specific mechanism for appropriate redressal." 6. On the other hand, learned counsel for the State also supports the contention raised by respondent No. 1 while stating that the petitioners have to exhaust appellate remedy while filing an appeal under Section 18 of the 2002 Act which they have not filed as such this petition itself is not maintainable. 7. I have heard learned counsel for the parties and perused the material available on record. 8. Section 22 (2) (e) of the Recovery of Debts and Bankruptcy Act, 1993, reads as under:- 22. Procedure and Powers of the Tribunal and the Appellate Tribunal.- (1) The Tribunal and the Appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules, the Tribunal and the Appellate Tribunal shall have powers to regulate their own procedure including the places at which they shall have their sittings. (2) The Tribunal and the Appellate Tribunal shall have, for the purposes of discharging their functions under this Act, 7 the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely:- …………………………. (e) reviewing its decisions; ……………………………... Further, section 115 of CPC, 1908 provides that: Section 114.-Review - Subject as aforesaid, any person considering himself aggrieved (a) by a decree or Order from which an appeal is allowed by this Code, but from which no appeal has been preferred, (b) by a decree or Order from which no appeal is allowed by this Court, or (c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the Order, and the Court may make such Order thereon as it thinks fit.” 9. Further, from bare perusal of Section 18 (1) of the Act, which reads as under:- “18. Appeal to Appellate Tribunal.- (1) Any person aggrieved, by any order made by the Debts Recovery Tribunal [under section 17, may prefer an appeal 8 alongwith such fee, as may be prescribed] to the Appellate Tribunal within thirty days from the date of receipt of the order of Debts Recovery Tribunal. 10. In this aspect there are n number of pronouncement by the Hon’ble Supreme Court in the case of Punjab Nation Bank Vs. O.C. Krishnan reported in (2001) 6 SCC 569 and in the case of Devendra Kumar Rai Vs. SBI reported in 2022 SCC Online MP 1295: (2023) 3 MP LJ 305. 11. In the matter of Varimadugu Obi Reddy Vs. B. Sreenivasulu and Ors. reported in (2023) 2 SCC 168 , the Hon’ble Supreme Court has held as under:- “35. This Court in the judgment in United Bank of India Vs. Satyawati Tondon reported in 2010 8 SCC 110 was concerned with the argument of alternative remedy provided under the SARFAESI Act, 2002 and nd dealing with the argument of aher ernative remedy, this Court had observed that where an effective remedy is avail available to an aggrieved person, the High Court ordinarily must insist that before availing the remedy under Article 226 of the Constitution, the alternative remedy available under the relevant statute must be exhausted. Paras 43, 44 and 45 of b the said judgment are relevant for the purpose and are extracted below (SCC p. 123). 9 "43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of e taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc. the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute. 44. While expressing the aforesaid view, we are 10 conscious that the powers conferred upon the High Court under Article 226 of the Constitution to issue to any person or authority, including in appropriate cases, any Government, directions, orders or writs including the five prerogative writs for the enforcement of any of the rights conferred by Part III or for any other purpose are very wide and there is no express limitation on exercise of that power but, at the same time, we cannot be oblivious of the rules of self-imposed restraint evolved by this Court, which every High Court is bound to keep in view while exercising power under Article 226 of the Constitution. 45. It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, but it is difficult to fathom g any reason why the High Court should entertain a petition filed under Article 226 of the Constitution and pass interim order ignoring the fact that the petitioner can avail effective alternative remedy by filing application, appeal, revision, etc. and the particular legislation contains a detailed mechanism for redressal of his grievance.” 11 36. In the instant case, although the respondent borrowers initially approached the Debts Recovery Tribunal by filing an application under Section 17 of the SARFAESI Act, 2002, but the order of the Tribunal indeed was appealable under Section 18 of the Act subject to the compliance of condition of pre-deposit and without exhausting the statutory remedy of appeal, the respondent borrowers approached the High Court by filing the writ application under Article 226 of the Constitution. We deprecate such practice of entertaining the writ application by the High Court in exercise of jurisdiction under Article 226 of the Constitution without exhausting the alternative statutory remedy available under the law. This circuitous route appears to have been adopted to avoid the condition of pre-deposit contemplated under 2nd proviso to Section 18 of the 2002 Act. 12. In light of aforesaid discussion it is quite vivid that the petitioners have not availed the alternate remedy of appeal before the Debt Recovery Appellate Tribunal and accordingly this petition cannot be declared to be maintainable at any cost.
Arguments
: Mr. Syed Ishhadil Ali, Advocate along ... Respondent(s) with Mr. Syed Jayed Ziya Ali, Advocate. For Respondent(s) No. 1 : Mr. Sharad Mishra, Advocate. For Respondent/State : Ms. Anuja Sharma, Panel Lawyer. Hon’ble Mr. Justice Amitendra Kishore Prasad 09/05/2025 Order on Board 1. By way of this petition, the petitioners have prayed for following reliefs:- “1. That the Hon'ble court may kind enough to call the record of the petitioner. 2. That the Hon'ble Court may be kind enough to pass appropriate writ/writs, order/orders & direction/directions by quashing (Annexure P/1) or direct to grant at least 6 month of time to repay the loan amount after recalculation of loan amount in the circumstances of the case. And put stay on the aution of the said property. 3. That the Hon'ble court may be kind enough to pass any other order or direction as deemed fit in the 3 circumstances of the case.” 2. The petitioners are aggrieved by the order dated 13.12.2023 passed by Debt Recovery Tribunal (Madhya Pradesh & Chhattisgarh) by which the concerned Debt Recovery Tribunal has dismissed the appeal as barred by limitation. 3. The case as projected by the petitioners is like that the respondent bank sanctioned a credit facility of ₹36,01,733/- to the applicants, who mortgaged two immovable properties in Durg as security. The applicants initially repaid the loan through EMIs but defaulted due to financial hardship during the COVID-19 pandemic, resulting in the account being classified as a Non- Performing Asset (NPA). The bank issued a notice under Section 13(2) of the SARFAESI Act and allegedly obtained an ex-parte order under Section 14 from the District Magistrate, Durg, without serving any prior notice or summons to the applicants. On 21.07.2023, the applicants were informed of the bank’s intention to take physical possession of the secured properties. Being aggrieved by the alleged non-compliance with legal procedures and violation of natural justice, the applicants filed a petition before the Debts Recovery Tribunal (DRT), Jabalpur, challenging the legality of the bank’s actions and the District Magistrate’s ex- parte order dated 30.01.2023. 4. It was contented when the account was declared NPA and 4 proceedings under Section 13 (2) and 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 has been initiated. The petitioners have preferred an application before the Debt Recovery Tribunal, Jabalpur. Though the petitioners have raised several grounds in their application before the Debt Recovery Tribunal, however, the Debt Recovery Tribunal without entering into merits of the case have considered the application on the ground of limitation and it has been declared by the Debt Recovery Tribunal, Madhya
Decision
13. Accordingly, the writ petition is dismissed. 14. However, the petitioners are at liberty to pursue their remedy 12 before the appellate authority as available under the law. Sd/- (Amitendra Kishore Prasad) Judge Raghu Jat